Towards a Patents Commons

Koman: Let me switch over to the proposals you made at LinuxWorld regarding a repository of patents, and Red Hat funding the legal work for patents that would be given to the Fedora Foundation.

Webbink: Right, I mentioned the repository; this was something Stuart Cohen at OSDL had proposed. Having a central index of patents that are available for open source. What Red Hat has advanced as part of the Fedora Foundation, which we're in the process of forming, was that to the extent that developers have patentable inventions that they would like to contribute to open source, if they will assign those to the foundation, the foundation will pay to get the patent. And then we'll promise to make sure those patents are available to the open source community.

Here at Red Hat I've had people send me one-inch-thick write-ups of their inventions, and, you know, I don't want to look at that because I don't know what to do with it. They were willing to assign it to Red Hat, but I just don't feel right about that--we're a commercial company. If someone's willing to do that, let's make sure it's put in a place where it's free of the control of commercial companies.

That's quite frankly why you have competing proposals out there from Red Hat as far as the Fedora Foundation and OSDL, which is largely controlled by three or four very large OEMs.

Koman: Are you planning to work with OSDL? Are you in competition with them?

Webbink: We have always worked with OSDL; we'll continue to cooperate with them. I think there's room here for multiple players such that the Apache Foundation could pursue a strategy like this as well. Eclipse could. Mozilla could. And then we all become networked together. So we're not only protecting ourselves but protecting each other.

Koman: Sort of like the technology, take a decentralized approach.

Webbink: And that becomes the patents commons.

Koman: You don't necessarily see a need for one centralized go-to place.

Webbink: In fact, I would tend to think that one go-to place might not be such a good idea. The more you try to centralize these sorts of things, the harder it becomes to find a mechanism to make it work, because you get competing interests and people disagree. So better to have a variety of foundations each pursuing a similar strategy and agreeing to work together than trying to have them all pursuing a singular strategy.

Koman: Are there specific examples of a patent being claimed on some open source software that endangered the viability of the project or the company?

Webbink: No. To my knowledge, there have been no formal claims, but that's rarely how the game is played. One of the things you learn if you work in and around a technology company is you get these letters from patent attorneys saying, "My client has these three valuable patents on blahblahblah and we think these may be of interest to you. We're giving you an opportunity to license these patents early at a highly discounted rate." And what they're doing is trying to sucker enough people into taking that license that they can build up their war chest so they can go sue Microsoft or somebody who has deep pockets.

That's how it's typically played. So right now there are statements implying some kind of infringement but nothing specific. And among those laying out those kinds of comments is Microsoft. I have copies of letters they've sent along these lines. But they focused their attention not on the commercial companies but on customers. Which is part of the reason why I made the second challenge to them at LinuxWorld, which was, "Let's leave the customers out of this." If you have a beef, come to me, come to my counterpart at Novell, at IBM. But don't pursue this SCO strategy of threatening customers.